Civil Matter

June 9, 2010

Prescription Rules in an Asbestos Case

As the last couple posts have described, some aspects of asbestos cases do not fit within the traditional mold of other personal injury cases. Because these cases continue to be treated as personal injury matters, some of the rules must be relaxed or modified. The Louisiana Supreme Court dealt with some of these modifications in the case of Cole v. Celotex, 599 So.2d 1058 (1992). We look now to explore what the Court had to say about prescription rules that place time limits on a plaintiff’s right to file suit for an injury.

Typically, the rules of prescription give an injured party one year from the date they are injured to file a lawsuit seeking damages against the person(s) responsible for the injury. As we have already noted, the time when an asbestos-related injury actually “occurs” is difficult to determine. Thus, the Court in the Cole case ruled that, for legal purposes, the repeated exposure to hazardous substances give rise to a claim. That is true even if the asbestos-caused disease does not manifest itself until later.

Because the time of the injurious event is difficult to pinpoint, the prescription rules are also hard to apply. Indeed, the Court recognized that a brief one year prescriptive period is incompatible with long latency diseases. An injured party may not even realize that he has suffered any harm for years. Thus, Lousiana courts can apply the “discovery” rule to asbestos cases. Under the discovery rule, the prescriptive period does not begin until “the plaintiff knows or through the exercise of due diligence should have known of the injury.” Cole, 599 So.2d at 1084. Even then, the prescriptive period only runs on injuries the plainiff knows about or should know about. In other words, a plaintiff will not miss his chance to seek damages for disease he does not know about:

June 8, 2010

Assessing Multiple Defendants’ Liability in an Asbestos Case

by Berniard Law Firm

As research has revealed more about the dangers of asbestos and the mechanics of how it causes certain types of lung disease and cancer, medical and social opinion of asbestos has changed. Likewise, the law of asbestos-related injuries has changed in the last half century. For example, one of our blog posts recently discussed how workplace asbestos cases are now typically addressed through workers compensation proceedings rather than traditional personal injury tort law. A decision issued by the Louisiana Supreme Court in 1992 illustrates another change in the law related to asbestos injuries.

Background

The background and procedural history of Cole v. Celotex Corp, 599 So.2d 1058 (1992), is complicated. However, knowing the case is important when trying to understand the significance of asbestos litigation. The plaintiffs in the case suffered asbestos exposure in the course of their work duties and filed suit against twenty individual defendants. The defendants included manufacturers of the asbestos materials the plaintiffs encountered on the job as well as officers of their former employers. Additionally, the plaintiffs added as a defendant Insurance Company of North America (“INA”), the primary liability insurance provider for the officers.

June 7, 2010

Berniard Law Firm Unveils Facebook Page Dedicated to BP Oil Spill

by Berniard Law Firm

For all of our readers who are on Facebook, our firm has unveiled a new Page dedicated to the BP oil spill as a means to keep abreast of the latest news and more.

Click here to add us!

June 7, 2010

Determining When an Asbestos Injury Has Occurred

by Berniard Law Firm

Because of the nature of asbestos related diseases and the way victims contract them, injury cases involving asbestos can be complicated. Lengthy exposure to asbestos in

Louisiana and the long latency, or development, of asbestos caused diseases takes these cases outside the realm of typical personal injury cases. While this framework is not perfect, it still provides asbestos victims an avenue to seek compensation for their injuries.

In the case of Cole v. Celotex, 599 So.2d 1058 (1992), the Louisiana Supreme Court recognized the difficulty of applying pure tort or personal injury principles to asbestos cases and handed down several important rules for asbestos injury cases coming after it. By reviewing the Court’s analysis of when, legally speaking, an asbestos injury actually occurs, it is our hope that you can better understand the issues involved and how you might be able to receive compensation for any damages you face because of exposure. Whats more, determining the legal timeframe is critical, as timing can affect both a plaintiffs right to file suit as well as the law that applies to the case.

June 6, 2010

Previous Injury and the Eggshell Plaintiff Rule

by Berniard Law Firm

Accidents happen and when they do people wonder just how much can be considered when calculating damages. Many wonder “what happens when someone who is already injured is in an accident?” What’s more, if someone already had a bad knee, for example, can the defendant be held responsible for further damage to that knee. The Eggshell Plaintiff Rule helps explain the aggravation of existing injuries.

In a 2000 case, the Louisiana Supreme Court set out the Eggshell Plaintiff Rule but still reversed the Court of Appeal’ finding of damages because the trial court’s decision of no aggravation of injuries did not meet the high manifest error standard.

In April 1996 Mary Touchard drove a friend to Carnecro to pay her electric bill. While leaving the parking lot of the power company, Touchard’s car was hit from behind by a pickup truck driven by Ted Breaux. Ms. Touchard did not have the ambulance called and complained of a headache at the scene while Breaux claimed he was not entirely at fault for the accident and that vehicular impact was minimal. Ms. Touchard sued Breaux and his insurance company, however, claiming she suffered mental and physical injuries in the accident.

June 5, 2010

Contract Indemnity Provision Voided Under Louisiana Oilfield Anti-Indemnity Act: Legislative Intent Irrelevant When a Statute is Clear

by Berniard Law Firm

Samuel Silverman Jr. was injured while working for BJ Services Company, a contractor for Bass Enterprises Production Company, hired to provide services on an oil well in Cado Parish. The injury was to Silverman’s knee and occurred because a hoist operator employed by another contractor at the site, Mike Rogers’ Drilling Company, dropped a cement head and pinned his knee against a derrick.

Silverman sued Rogers’ Drilling, alleging that the negligence of their employee (the hoist operator), caused the accident. Rogers’ Drilling tried to get around liability by filing a third-party demand against Bass under a provision in the contract between Rogers’ and Bass wherein Bass, as operator, agreed to indemnify Rogers, as contractor.

According to the provision, indemnification included a release of any liability and agreement to protect, defend, and indemnify against all claims, demands, and causes of any kind without regard to negligence of any party. Can such a strong indemnity clause be upheld under Louisiana law and the Louisiana Oilfield Anti-indemnity Act (LOAIA)? The trial court found the provision to be against the LOAIA and thus null and void, and in a decision this summer, the Louisiana Court of Appeals agreed.

June 3, 2010

How the Law Approaches Medical Malpractice in Pregnancies

by Berniard Law Firm

More than 98,000 people are killed each year as a result of medical errors. The rights of the deceased are protected in court through what is called a survival action, which allows the relatives to file a claim in place of the deceased for conscious pain and suffering, damage to person/property, and medical expenses. Survival actions are commonplace where a doctor’s negligence caused someone’s death. In order to succeed on a medical malpractice claim, it must be shown that the medical personnel was negligent in causing the harm in each instance.

The law was unsettled, however, on whether parents could bring a survival action for an unborn/stillborn child. It is often a grey area as to the issue of whether a still born child has any rights under a survival action.

A 2010 Louisiana Court of Appeals case addressed this very issue:

June 2, 2010

Elected Officials Recognize the Dangers of Distracted Driving

by Berniard Law Firm

Distracted driving is a huge problem in Louisiana. In fact, according to a study of the Louisiana Highway Safety Commission, at any given time, at least one of every eleven cars on the road is driven by someone using a cell phone. The Study was commissioned by the legislature in an effort to help policy makers understand how dangerous mixing cell phones and driving truly is. Specifically, a survey of street corner observers noted that on average 9.2 percent of drivers were using hand-held phones at any given time, slightly more than the national average. A summary of the complete results of the study can be found here.

Distracted driving leads to traffic accidents and facilities, and according to other studies, distracted drivers are at increased risk of crashing. However, despite a threefold increase in cell phone use in the last decade, crash trend data in Louisiana and nationwide has decreased overall. This does not mean that using a cell phone while driving is not a distraction or that distracted driving is not incredibly risky. Rather, some questions exist over how much the distraction contributes to a crash. Drivers tend to slow down when talking on the phone, which may be the reason crashes overall have not increased. The reality is that the risk posed by driver phone calls is difficult to measure, particularly distinguishing between handheld and hands-free phone calls.

Many different solutions have been proposed to deal with the distracted driving problem. For example, a Baton Rouge firm is selling a new device that actually restrict cell phone calls and messaging when the user’s vehicle is moving. State and federal legislators have proposed changes as well.

June 1, 2010

Medical Malpractice Claims Must Be Handled With Care

by Berniard Law Firm

Almost every person who is admitted at a hospital has had to deal with a nurse at some point. Nurses, like doctors, are responsible for providing medical care to patients and can be subject to liability if they deliver treatment that falls below the standard set forth by the law of proper care. A 2010 case centering around the Willis Knighton Medical Center in Bossier City, Louisiana, discusses the standards required of a nurse.

Mr. Reilly was admitted to the ER with multiple pelvic fractures after a horse had fallen on top of him at Louisiana Downs. After surgery, doctors inserted a catheter to alleviate bladder pressure. Reilly was cared for by several nurses in the following months who removed and reinserted additional catheters. Reilly alleged that on numerous occasions, the nurses were negligent in the removal and insertion process, leaving him impotent and in need of additional surgery to correct the damage that he had suffered from this process.

To file a medical malpractice claim against a nurse or doctor, you must establish the:

May 31, 2010

Louisiana Roads in Bad Shape: Poor Roads Lead to More Accidents

by Berniard Law Firm

According to a recent study published by the Road Information Program (a nonprofit group that evaluates highway data), Louisiana has the second highest auto fatality rate in the nation. In 2008, Louisiana had 2.02 deaths for every 100 million miles traveled. Montana was the one state with more deaths, at 2.12 per 100 million miles. As noted in a recent editorial in the Louisiana Times-Picayune, “That translates into 4,782 people who lost their lives on Louisiana’s roadways from 2005 to 2008.”

Researchers found that many factors lead to the higher percentage of deaths, including poor road conditions. In fact, according to the study, 44 percent of major state and local roads are in “poor or mediocre” condition. Additionally, 13 percent of Louisiana’s bridges are structurally deficient and 16 percent don’t meet current design standards. Poor roads are those considered to have deficient lane width and lighting and lack barriers and paved shoulders. The study found that these factors played a role in as many as a third of the fatal or serious accidents.

While road conditions in Louisiana are bad, the state is working towards improvements and recently used $1.2 billion in state surplus money and $500 million in federal stimulus money to renovate highways and bridges. The article notes “safety projects such as the post and cable barriers on Interstate 12 in St. Tammany Parish and on Interstate 10 in St. James are examples of smart, life saving measures.”